J&K HC | Is taking off trousers of victim as well as taking off one’s own trousers an attempt to rape? HC clarifies distinction between indecent assault and attempt to rape

Jammu and Kashmir and Ladakh High Court

Jammu and Kashmir High Court: Sanjeev Kumar, J., granted bail to the applicant in arrested in a rape case. While clarifying the distinction between an attempt to rape and preparation to attempt rape, the Bench stated,

“There is fine distinction between preparation and attempt to commit offence and the different between the two lies primary in the greater degree of determination and it is, therefore, necessary to be proved in an offence of attempt to commit rape that the accused has gone beyond the stage of preparation.”

The alleged facts of the case were that the victim, about 10 years and nine months of age had gone to the house of the applicant for buying mobile charger as he deals with mobile accessories. The allegations against the applicant were that he took the victim to the attic of the house, gave her mobile lead and thereafter gagged her mouth with a tape, took off her trousers and also removed his own trousers and made an attempt to rape her. However, in the meanwhile, younger brother of the petitioner reached the spot. It was, however, stated by the victim that she covered her legs with her shirt and the brother of the petitioner could not see her. A case for offences under Sections 376, 354, 511 IPC and Section 8 of POCSO Act was registered and the victim was subjected to medical check-up, according to which no intercourse had taken place nor was there any mark of violence on the body or any private part.

It was contended by the applicant that he had been falsely implicated in the crime, by one Rafiq Ahmed Sheikh and his family, who belong to a different sect of Islam, harbour ill will against the petitioner and had, with a view to settle scores, lodged a false and frivolous FIR and even accepting the contents of the FIR as gospel truth, no offence under Section 376/511 IPC or under Section 8 of POCSO Act was made out.

Indecent Assault v. Attempt to Rape

  1. Whether the act of the petitioner taking off the trousers of the victim as also is own trousers would amount to an attempt to rape?

In Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560, the Supreme Court had held that, “The point of distinction between an offence to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he is just going to have sexual connection with her.”

Thus, the Bench opined that there is fine distinction between preparation and attempt to commit offence and the different between the two lies primary in the greater degree of determination and it is, therefore, necessary to be proved in an offence of attempt to commit rape that the accused has gone beyond the stage of preparation. In the instant case, the petitioner had allegedly stripped the victim naked and had also taken off his trousers. This was, thus, an effort of making preparation for committing an attempt. Without there being any further act committed by the petitioner, the conclusion could not be made that the petitioner intended to commit rape or that the act attributed to the petitioner amount to an attempt to commit rape. Therefore, prima facie, Section 511 IPC would not be attracted and it could, at best, be a case of indecent assault punishable under Section 354 IPC.

  1. Whether the offence under Section 8 of POCSO Act was prima facie made out?

Section 7 of the POCSO Act defines “Sexual Assault” as:

“7. Sexual assault.—Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”

Hence, going by the statement of the victim, it was held to be abundantly clear that the act of the applicant taking off the trousers of the girl and also taking off his own trousers was an act with sexual intent, which involved physical contact without penetration and, therefore, would amount to committing sexual assault punishable under Section 8. Therefore, the Bench stated that the applicant was accused of committing indecent assault but also seem to have committed sexual assault defined under Section 7 of the POCSO Act.

 Maintainability of Successive Bail Application

On the maintainability of the successive bail application after the dismissal of the same the Trial Court, the Bench stated that under Section 439 of the CrPC, the High Court and the Court of Sessions have concurrent jurisdiction to grant bail in case a person is in custody in connection with the commission of offence of the nature specified in Section 437(3) of CrPC. Hence, if a person moves the Court of Sessions for grant of bail and his bail plea is rejected, he shall be entitled to file a fresh bail application before the High Court on the same grounds. However, while doing so, he may also point out the illegality or infirmity in the order of learned Sessions Judge rejecting his bail plea which was met by the applicant while alleging that the rejection order passed by the Trial Court was cryptic and did not dwell upon the well-established parameters to be taken into consideration while considering bail plea in non-bailable offences.

Conclusion

In the light of the above, after analyzing the statement of the victim in light of the definition of rape under Section 375 IPC, the Bench held that indisputably, the act of applicant did not, by any stretch of reasoning, amount to rape. Further noticing that the applicant was in custody since 16-12-2020 and that the investigation in the matter had been completed; the Bench opined that the purpose of arrest had been well served. Hence, the petitioner was granted bail subject to him furnishing personal bond in the amount of Rs.50,000 and two sureties of the like amount to the satisfaction of the Trial Court.[Fayaz Ahmad Dar v. UT of J&K, 2021 SCC OnLine J&K 463, decided on 12-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Applicant: N.H.Kuchai, Advocate.

For UT of J&K: Asif Maqbool, Dy. AG vice and Mr. Mir Suhail, AAG

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